An Empirical Study On The Distinction Between Robbery And Extortion

In the case of violence on the spot and property acquisition on the spot,there are many disputes on whether the perpetrator constitutes the crime of robbery or extortion.Generally speaking,there are two main theories: the theory of mutual exclusion of two crimes and the theory of concurrence of two crimes.Among the many treatises on the mutual exclusion of the two crimes,there are two kinds of distinguishing theories: one is the distinguishing standard of "two on the spot" that is,the distinguishing standard of violence on the spot and obtaining property on the spot,and the other is the distinguishing standard of elements of violence.Whether the violence standard or the "two on the spot" standard are only summarized and summarized from the two levels of form and experience,and the essence of the phenomenon and the law contained therein are not deeply excavated.Contrary to the theory of mutual exclusion of two crimes,the theory of concurrence holds that there exists a concurrence relationship between robbery and extortion.It tries to analyze the relationship between the two crimes from the perspective of concurrence,but there are methodological doubts about the logic of proof that the two crimes are lifted by the degree of violence.In order to correctly understand the qualitative analysis of the cases of violence and property acquisition on the spot,it seems pale to analyze them only from the normative level.For this reason,the author retrieved 80 relevant cases of "violence on the spot and property acquisition on the spot" from the Chinese Judicial Documents Network,Peking University Fabao and Reference to Criminal Trial,to explore how to deal with such cases in trial practice.Qualitative analysis.The 80 cases collected by the author are controversial about whether they are convicted of robbery or extortion.They are categorized as slaughter,cause of occurrence,impersonation of identity and requiring the victim to write an arrears or receipts.Through the study and analysis of the collected cases,it is found that the trial practice tends to identify the relationship between the two crimes as exclusive and mutually exclusive,and the application of restriction includes the theory of competition.When dividing the two crimes,we mainly adopt the double standards of violence and "two on the spot".The crime of robbery is recognized as the crime of violence on the spot and the degree of violence is enough to suppress the victim's resistance and obtain property on the spot.In other cases,it is generally recognized asthe crime of extortion.In the case of violence on the spot and property acquisition on the spot,the following problems arise in judicial trial practice when distinguishing two crimes: 1.mechanically applying two standards on the spot,rigidly recognizing "on the spot" and neglecting the difference of violence degree,due to the overlap of the constitutive elements of the two crimes,the difficulty in identifying the form of property possession by the perpetrator and the inconsistency of the demarcation criteria between the two crimes.As long as the perpetrator commits violence on the spot and obtains property on the spot,it is recognized as robbery,which leads to imbalance between crime and punishment.2.The phenomenon of different sentences in the same case is serious.The identification of different nature for the same type of crime aggravates the judicial disorder.The problems existing in the process of dividing the two crimes in judicial practice reveal the drawbacks of the current theoretical criteria for dividing the two crimes.In order to accurately divide the two crimes,we need to start from the nature of the crime and explore the essential jurisprudence behind the case.A thorough analysis of the two crimes in judicial cases reveals that in the case of violence on the spot and property acquisition on the spot,people's way of obtaining money is an important basis for dividing the two crimes,and the freedom of the victim's disposition is the key to dividing the two crimes.When the perpetrator resorts to violence and forcibly acquires property,the crime of robbery is established.In the case of the victim's voluntary delivery of property,the violence of the perpetrator restrains the victim's resistance and makes the victim have no choice but to voluntarily deliver property under the circumstance of limited freedom of control of legal interests.The perpetrator's violence has not yet restrained the victim's resistance,but only exerts pressure on the victim's psychology and allows him to voluntarily deliver property based on fear.Establish the crime of extortion.Starting from the difference of the nature of the crime,this criterion explains the essential jurisprudence behind the phenomenon and provides theoretical guidance for judicial practice.Of course,if we want to correctly divide the two crimes,we need to further improve legislation and justice.Legislation should make it clear that violence belongs to one of the means of extortion.Practical circles should also adhere to the principle of the unity of subjective and objective and the compatibility of crime and punishment when identifying the twocrimes.Through the improvement of legislation and judicature and the establishment of new distinguishing standards,it can provide practical basis for correctly distinguishing the two crimes.